NO. 12083 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

RUTH A. MOVIUS , 

Plaintiff and Appellant, 

-vs - 

ARTHUR J. MOVIUS, JR., 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant : 

Scott, Scott and Baugh, Billings, Montana. 

Jeffrey Jo Scott argued, Billings, Montana. 

For Respondent : 

Michael J. Whalen argued, Billings, Montana. 

Submitted: February 16, 1972 

Decided : flM 1 - 197~~ 1 I 
Honorable Jack D. Shanstrom, District Judge, sitting in place of Mr. Justice 

Wesley Castles, delivered the Opinion of the Court. 

This appeal and cross-appeal arises out of two separate actions 

filed in the district court of the thirteenth judicial district, in and 

for the county of Yellowstone, both of which were consolidated in the lower 

court. The source of both actions is a divorce decree entered between the 

parties on August 8, 1956. The decree incorporated by reference a property 

settlement agreement, the terms of which form the basis of this appeal. 

Appellant here and plaintiff below is the first wife of respondent 

who is also a cross-appellant. The parties in this opinion will be referred 

to respectively as plaintiff and defendant. 

The matters presently before the Court were instituted by plaintiff 

in the divorce action to enforce certain terms of the property settlement 

agreement alleged to have been breached by defendant. Plaintiff at the same 

time filed an original complaint in specific performance to compel compliance 

with the same agreement. The reason for this duplication in the lower court 

is not entirely clear. In any event, the issues in each case are identical, 

and will be so treated here. 

Plaintiff asserts six issues for review; defendant cross-appeals on 

the court's requirement that he pay any alimony at all. All issues in varying degrees go to the district court's construction of the property settlement agreement. It is most convenient to discuss the issues in conjunction 

with the evidence. 

The important facts are not in dispute. At the time of their divorce 

in 1956, the parties agreed in writing on matters of property settlement, 

alimony and child support. The pertinent provisions of their agreement read 

as follows: 

"6. Beginning September 1, 1956, First Party will 

make the following monthly payments to Second 

Party: 

"(a) The sum of $632.00 per month. 

"(b) The sum of $150.00 per month 

for the support of Arthur J. Movius, 111. 

"(c) The sum of $1 50.00 per month for the 

support of David Lewis Movius. 
"(d) The additional sum of $150.00 per month for 

the support of each of said sons during the 

months of each year each is attending college. 

"Second Party agrees that from the payments specified 

under (b), (c) and (d), she will care for and maintain said 

children until they respectively complete their college 

education; provided, however, that if the sums specified 

under (b), (c) and (d), together with other income, if any, 

received by said children should be inadequate to pay for 

the maintenance of said children and their college expenses, 

First Party will, upon satisfactory proof that the aforesaid sums are inadequate for such purposes, make such additional payments as may be reasonably necessary to permit 

each of said children to maintain the living standards 

prevalent at the college which he is attending. 

"If the adjusted gross income of the Party of the First 

Part is less than $35,000.00 for any year, the payments 

to Second Party for the succeeding year under subparagraphs (a), (b), (c), and (d) shall be decreased by 4 

per cent of the difference between the adjusted gross 

income and $36,500.00. If the adjusted gross income of 

First Party is more than $38,000.00 for any year, the 

payments to Second Party for the succeeding year under 

subparagraphs (a), (b), (c) and (d) shall be increased by 

4 per cent of the difference between $36,500.00 and the 

adjusted gross income. " 

This extensive quotation forms the basis of plaintiff's contentions 

on appeal. She claims first that the district court should have awarded her 

the sum of $6,750.00 for additional expenses incurred by her for the college 

education of the two boys over and above defendant's child support payments. 

This the court refused to do for the reason that plaintiff produced no proof 

as to the character of such expenses, their amount or their necessity. In 

short, the trial court found that plaintiff failed to show the "satisfactory 

proof" required by paragraph 6 (d) to create the extra obligation. Likewise, 

it appears during the period plaintiff claims the additional support that 

defendant gave direct financial aid to the children while they were enrolled 

in college. We agree that plaintiff's claim for additional education expenses 

is not sustained by the evidence. The children being now emancipated and 

educated, there is no further issue on child support. 

Plaintiff's next claim has to do with her alimony rights. Defendant's 

income is down substantially from its level at the time of the divorce. Applying the 4 percent reduction formula provided in the agreement, the district 
court denied plaintiff in entirety her right to alimony in 1969 and reduced 

it substantially for 1970. In doing so, the court applied the 4 percent 

adjustment figure on a monthly rather than an annual basis. The effect 

of this was to give defendant the benefit of 48 percent (4 percent per month 

times 12 months) of any reduction in income below $36,500.as an offset against 

alimony. Plaintiff urges this was error, that the 4 percent reduction factor 

should have been applied annually. The property settlement agreement does 

not state which interpretation is correct. Both parties testified in favor 

of the interpretation most favorable to each. In concluding as it did, the 

district court found: 

"Referring to the agreement as a whole, there is 

discernible an intention of the parties to settle their 

affairs on an approximate equal sharing basis. The 

division of real and personal property interests, on the 

terms provided, demonstrates this. An analysis of paragraph 6 shows the existence of a similar objective with 

respect to Plaintiff's entitlement to share in the Defendant's future income. By keying the amount of support 

payments to the rise and fall of Defendant's income, 

when it varies more than $1,500.00 either way from 

$36,500.00, an adjustment figure of 4% per month approaches 

an equal division of income. Although the agreement provides for an increase or a decrease of payments 'for 

the succeeding year', it is the payments specified under 

subparagraphs (a), (b), (c) and (d) which are adjusted 

and they are monthly payments. On this point the Defendant must prevai 1 . " 

Whi 1 e we recognize plaintiff's argument that a contrary decision 

might have been reached, we cannot say as a matter of law that the district 

court misconstrued the agreement. It was forced to resolve an ambiguity, 

and there are sound reasons to support the decision reached. The court was 

compelled to look at the overall intent of the parties by established principles of contract construction, such as stated in Steen vs. Rustad, 132 

Mont. 96, 313 P.2d 1014: 

" * * * It is well established that a court, in interpreting a written instrument, will not isolate certain 

phrases of that instrument in order to garner the intent 

of the parties, but will grasp the instrument by its 

four corners and in the light of the entire instrument, 

ascertain the paramount and guiding intention of the 

parties. * * *" 
Plaintiff next urges that the court, under the same formula applied 

above, should have increased rather than decreased her alimony. This argument is based on the fact that the defendant, a physician and surgeon practicing in Billings, sold his interest in his medical partnership (The 

Billings Clinic) in 1967 for $80,000, payable over two years. This, urges 

plaintiff, should have been includable as part of defendant's "adjusted 

gross income" for those years, since it was so listed on his income tax returns. The trial court declined to accept this contention and excluded the 

sale proceeds from defendant's income for purposes of determining alimony. 

In so holding, the court emphasized the provisions of paragraph 2 of the 

property settlement agreement, reading as follows: 

"The Party of the First Part shall retain and own all 

property standing in his name, consisting of the following: 

"(b) His interest in the assets and accounts receivable of The Billings Clinic." 

To adopt plaintiff's position would operate to vest her with an 

interest in property that was clearly granted to defendant years before in 

the agreement. The district court reasoned and we agree that to include 

the sale proceeds of defendant's separate property for alimony computation 

would negate the express intention of the parties as above quoted. Plaintiff in 1956 relinquished all interest in and to The Billings Clinic. She 

should not now be heard to reassert it. 

In conjunction with these proceedings in the lower court, the defendant petitioned to henceforth completely el iminate al 1 al imony requirements. His petition was based upon an alleged change in the financial circumstances of the parties. The trial court complied to the extent of reducing plaintiff's alimony to $132 per month. Both parties appeal from this 

determination. 

There is no issue raised as to the authority of the district court 

to make the modification. Whether the provisions of the property settlement 

agreement were contractual or decretal is not argued. The question is whether 
the court abused its discretion in ruling as it did. The standard to be 

applied in such cases is stated in Daniels v. Daniels, 147 Mont. 57, 409 

P.2d 824, as follows: 

" * * * Thus, we see that under our law there is no 

guarantee of an annuity to a divorced wife. The trial 

judge in the ambit of his discretion must weigh the 

relative circumstances of the parties in light of the 

evidence presented in determining whether conditions 

demand a variation, alteration or revocation of alimony 

and support payments. We will look critically at that 

determination only if it is shown to be unsupported by 

the evidence before the trial court of the changing 

situations of the parties. The delicate decision is 

one of balancing the needs of the wife for support and 

maintenance against the husband's honest abil i ty to 

provide. " 

Under the facts here, we do not find the necessary abuse of discretion. For the ten years following the divorce, defendant's income ranged 

general ly between $36,500 and $45,000 annually. Then, with the termination 

of his partnership interest in The Billings Clinic in 1967, defendant's income dropped to $1 9,500 the fol lowing year. It rose to $26,500 in 1969 and 

was not more than that in 1970. At the time of the hearing, defendant was 

$10,000 in debt with no assets beyond accounts receivable from his medical 

practice. He had exhausted the receipts from the sale of the Clinic in 

setting up his new practice, making alimony payments and meeting living expenses. 

Plaintiff, on the other hand, had accumulated a net worth of approximately $137,000 and in addition was a 50 percent beneficiary to the proceeds 

of an estate appraised at $102,000 at the time of hearing. Although her income earning capacity was in dispute due to injuries sustained in a bicyclepedestrian accident, we cannot disagree with the district court's holding 

that she was financially able to provide for herself. 

The fact that defendant used a $20,000 inheritance from his sister 

in 1969 to meet mortgage payments on a home owned by his present wife is not 

in our opinion sufficient justification to overturn the lower court's ruling. 

Again we are dealing with broad discretionary guidelines, and whether we agree 

or disagree with the district court is not the issue. We are not able to state 
as a matter of law that the trial judge abused "the ambit of his discretion." 

Daniels , supra. 

What we have said above applies equally to both plaintiff's appeal 

and defendant's cross-appeal on the subject of future alimony. The ruling 

is affirmed. The $132 monthly payments do no more than pay the premiums on 

an insurance policy carried by plaintiff (with the children as contingent 

beneficiaries) on defendant's 1 ife. Such insurance pol icy was referred to 

in the property settlement agreement. There is no dispute that out of the 

$632 monthly a1 imony payments called for therein, the sum of $132 was set 

aside as the insurance premium. This being the fact, we cannot dispute the 

district court's finding: 

"Considering the purposes behind the creation and maintenance of this insurance policy, it should be continued 

in effect. 

"The payment to plaintiff, therefore, should be reduced 

to the sum of $1 32.00 per month from and after March 6, 

1970." 

The final issue for review is whether the district court erred by 

dismissing plaintiff's claim for one-half the value of certain Montana State 

College revenue bonds owned by the parties at the time of the divorce. Paragraph 3 of the property settlement agreement provides as follows: 

"Each of the parties shall be entitled to an undivided 

one-half interest in all stocks and bonds standing in 

the names of the parties hereto as joint tenants." 

There is much argument whether the bonds were owned by the parties 

as joint tenants or, as contended by defendant, were bearer bonds. The district court held they were not jointly owned. We need not resolve that issue, 

for it is undisputed that defendant cashed the bonds in 1957 and retained 

the proceeds. He did so in opposition to a demand made by plaintiff's counsel in 1957 or 1958 that he pay over one-half the proceeds to her. 

In Montana, an action upon the provisions of a written contract must 

be commenced within eight years or be barred by the Statute of Limitations. 

Section 93-2603, R.C.M. 1947. Plaintiff here waited nearly 14 years after 

the alleged breach became known to her. 

The judgment of the district court is affirmed. 
' Hon. Jack Shanstrom, district judge, sitting 

in place of Mr. Justice Wesley Castles. 

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